VanderKodde v. Mary Jane M. Elliott, P.C. et al

Filing 78

PROTECTIVE ORDER; signed by Magistrate Judge Ray Kent (Magistrate Judge Ray Kent, fhw)

Case 1:17-cv-00203-PLM-RSK ECF No. 67-14 filed 11/03/17 PageID.1632 Page 2 of 11

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SUSAN BUCK, ANITA BECKLEY,
RUBY ROBINSON, RITCHIE SWAGERTY,
and DANIEL VANDERKODDE,
on behalf of themselves and
all others similarly situated,
Plaintiffs,

Case No. 1:17-cv-203

v.

HON. PAUL L. MALONEY

MARY JANE M. ELLIOTT, P.C.,
BERNDT & ASSOCIATES, P.C.,
MIDLAND FUNDING LLC,
MIDLAND CREDIT MANAGEMENT, INC.,
ENCORE CAPITAL GROUP, INC., and
LVNV FUNDING LLC,
Defendants.
_________________________________________/
PROTECTIVE ORDER
Plaintiffs, by motion and appearing through their counsel of record, have requested entry
of this Order. The Court finds good cause, under Rule 26(c), for a discovery protective order.
NOW, THEREFORE, IT IS HEREBY ORDERED:
1.

Scope of Protective Order. The parties contemplate that in the course of this

litigation they may produce to one another certain Confidential Documents, as defined below, or
portions of Confidential Documents in their possession.

The term “Document” is

comprehensively defined to be synonymous in meaning and equal in scope to the usage of the
term in Rule 34(a) of the Federal Rules of Civil Procedure, which defines document to include
writings, drawings, graphs, charts, photographs, phone records, and other data compilations from

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which information can be obtained, including electronically stored information. The term
“Confidential Documents” shall specifically include, but not be limited to Documents containing
any of the following:
(a)

Protected Health Information:

Protected Health Information (PHI) shall have the same scope and
definition as set forth in 45 CFR 160.103 and 45 CFR 160.501 and
shall include all individually identifiable health information,
including demographic data, created or received by a health care
provider that relates to the past, present or future physical or
mental health of an individual, or the past present or future
payment for health care to an individual and that identifies an
individual (or could reasonably be used to identify an individual).
(b)

Financial and/or Bank Customer Information:

Personal and corporate financial, credit history, banking records
including but not limited to: customer bank records, bank
statements, general ledger entries, deposit information, loans and
lending transactions, loan applications, financial statements and
credit reports, business and personal state and federal income tax
forms, correspondence, and financial information concerning
assets, liabilities, net worth, and related confidential financial
information. Examples of Confidential Documents also include,
without limitation, documents containing a Bank customer’s name,
address, social security number, date of birth, account number,
credit card number, personal or tax identification number, account
balance, information relating to a deposit account, loan or
borrower relationship, loan application materials, or any other
identifying information.
(c)

Personally Identifiable Information (PII)

This category shall include information that can be used to
distinguish or trace an individual’s identity, either alone or when
combined with other personal or identifying information that is
linked or linkable to a specific individual, and shall include “means
of identification” as defined in 18 U.S.C. 1028d(7), which include
any number that may be used, alone or in conjunction with any
other information, to identify a specific individual, including any

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name, social security number, date of birth, official State or
government issued driver’s license or identification number, alien
registration number, government passport number, employer or
taxpayer identification number, unique biometric data, or other
unique physical representation, unique electronic identification
number, address, or routing code, or telecommunication
identifying information.
(d)
Trade Secret/Proprietary Information:
Documents and information that the producing party reasonably
believes constitute, reflect, or disclose trade secrets, proprietary
data or commercially sensitive information.
Irrespective of any confidential designation by a producing party, this Protective Order shall not
apply to any documents independently obtained from a non-party on an unrestricted basis if a
party obtained such documents in good faith and not in violation of any other protective order or
agreement entered into by one of the parties in this or any other action.
2.

Manner of Designation. The parties shall designate Confidential Documents by

stamping or otherwise marking them with the legend “Confidential” or “Confidential Documents
Subject to Protective Order” or similar language. Any document marked in this manner by either
party shall be subject to this Order.
3.

Disclosure of Confidential Documents Prohibited. Confidential Documents

shall be used only for the purpose of this action and for no other purpose. Except as provided by
the express terms of this Protective Order, all persons subject to this Order shall refrain from
disclosing in any manner any information set forth in any Confidential Documents.
4.

Exceptions to Prohibition on Disclosure. Counsel for a party to this action may

disclose Confidential Documents to the following persons, to the limited extent such disclosure
is necessary, under the following specified circumstances:

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(a) Officers or employees of any party in this action who are assisting counsel in
the prosecution or defense of this action to the extent necessary for such
assistance (including, but not limited to, the parties’ attorneys, investigators,
paralegals and other employees);
(b) Personnel of or counsel to any insurance company that issued any insurance
policy under which Defendants are an insured (including, but not limited to, the
Board of Directors, in-house attorneys, outside attorneys, investigators, experts,
consultants, senior executives, and employees of any such insurance company)
conducting, assisting, monitoring, reviewing, or making determinations with
regard or related to the litigation, provided that each such person signs a written
agreement to be bound by this Order in the form attached as Exhibit A; and
reinsurers, auditors, or regulators to which any such insurance company is
required to respond or report in the ordinary course of business regarding the
subject matter of this litigation, but only so long as such persons or entities are
already subject to substantially similar confidentiality obligations;
(c) Accountants, auditors or examiners required or authorized by law to review
materials that may include Confidential Material for audit or tax preparation
purposes;
(d) Persons specially retained by any of the attorneys or parties to this action to
assist in the preparation of this action, including but not limited to vendors,
experts, consultants, mediators and arbitrators, provided that such persons require
access to the Confidential Documents or information in order to perform the

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services for which they have been retained and provided that each such person
signs a written agreement to be bound by this Order in the form attached as
Exhibit A;
(e) Any person of whom testimony is to be taken in this litigation, provided that
such a person may only be shown Confidential Documents to the extent necessary
for such testimony and provided that such person is apprised of the confidential
nature of the documents pursuant to Paragraph 5, below; and
(f) Court reporters to the extent necessary for them to record testimony at
deposition, trial, or court proceedings.
(g) The Court and its personnel in an appropriate filing as provided elsewhere in
this Order.
5.

Counsels’ Obligation to Inform. Prior to disclosing Confidential Documents to

any person pursuant to paragraphs 4(a)-(e), counsel shall:
(a) Apprise that person of the confidential nature of the documents;
(b) Apprise that person that this Court, pursuant to this Order, has restricted the
use of such documents; and
(c) Show that person a copy of this Order.
6.

Non-waiver of Privilege; Inadvertent Disclosure. By agreeing to the procedures

in this Order, the parties do not waive any legal right or privilege applicable to either the
Confidential Documents or to any other request of, or discovery procedure available to, the
parties to this action. Further, inadvertent disclosure of any privileged document in the course of
discovery in this action shall not constitute waiver of any applicable legal right or privilege. In

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the case of any such inadvertent disclosure of privileged documents, the receiving party shall,
immediately upon becoming aware of the disclosure, or, if unaware of disclosure, within five (5)
business days of receipt of a written request by the producing party, return the original to the
producing party, destroy all copies thereof, as well as all notes, memoranda or other documents
that summarize, discuss, or quote the document, and delete any copy of the document, or any
portion thereof, from any word processing database, tape, or disk the receiving party maintains.
Return of a document over which the producing party has asserted a claim of privilege,
protection, or immunity under this paragraph shall be without prejudice to the receiving party’s
right to seek an order from the Court directing the production of the document on the ground that
the claimed privilege, protection, or immunity is invalid or inapplicable; provided, however, that
mere production of the document or information in the course of this action shall not constitute
grounds for asserting waiver of the privilege, protection, or immunity.
7.

Filing with the Court. In the event counsel for any of the parties wishes to file

or submit to this Court any Confidential Documents (by way of pleadings, motions, briefs or any
other papers or oral communication containing all or part of such document or information),
counsel shall file the appropriate motion to seal or for restricted access filing in accordance with
the procedures outlined in the Local Rules for the Western District of Michigan, including W.D.
Mich. LCivR 10.6, and the party must seek leave of court before filing any Confidential
Documents. The Court notes that good cause for filing under seal requires more than the
showing of good cause for this discovery protective order under Rule 26(c).
8.

Objections to Confidential Designation. All objections to any confidentiality

designation(s) must be submitted to opposing counsel in writing, either by fax, email or U.S.

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Mail. Within ten (10) calendar days of the designating party’s receipt of such written notice
from the objecting party, the designating party and the objecting party shall attempt to resolve
the dispute. If an agreement on the designation cannot be reached, it shall be the designating
party’s obligation to seek a court order affirming that the information at issue is entitled to
protection under the terms of this Order. The designating party shall move the Court for such an
affirming order within ten (10) calendar days of the failed attempt to resolve the dispute, unless
the parties stipulate in writing to a different time frame for the filing of such a motion. The
information in question shall be treated, consistent with its designation, as confidential pending
an order from the Court. A failure of the designating party to file its motion with the Court
within the time designated in this paragraph, or such other time as to which the parties may
otherwise agree (in writing), shall be deemed a waiver of the designation of the subject
information as confidential; and the documents, information or other things originally so
designated shall be deemed to be no longer subject to this Order and will no longer be protected
by the confidentiality designation.
9.

Violation of this Order. If a party has cause to believe that a violation of this

Order has occurred or is about to occur, that party may petition this or any other proper court for
appropriate relief. To the extent any party feels the protections of this Order are not adequate for
particular Confidential Documents or information, that party may petition the Court for an
appropriate amendment to this Order.
10.

Production of Confidential Documents in Response to Subpoena or In

Connection with Judicial Proceedings. Nothing in this Order shall prohibit any party from
using or disclosing Confidential Documents in response to a subpoena or court order seeking

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production of Confidential Documents or in connection with a criminal or administrative
investigation by any government or governmental body, grand jury proceedings, or the trial or
pretrial procedures and preparation of a criminal or administrative case.
11.

Return or Destruction of Confidential Documents. At the conclusion of this

action, all Confidential Documents and copies thereof in the possession, custody or control of the
parties shall be either returned to the producing party or destroyed. All notes, memoranda,
summaries or other documents in the possession, custody or control of the parties referring to,
describing, or relating to Confidential Documents shall be destroyed, except that counsel to each
party may retain one copy of pleadings, transcripts, exhibits, notes, memoranda, and
correspondence even if such documents constitute or contain confidential information. Such
material retained by counsel shall continue to be subject to the terms and conditions of this
Protective Order, and shall be returned to the producing party or be destroyed upon the
expiration of the applicable statute of limitations for claims related to that counsel’s
representation of the receiving party. Nothing in this paragraph applies to documents filed with
or otherwise in the possession of the Court.
12.

Other Provisions. This Protective Order shall be binding upon the parties hereto

from the date of execution, notwithstanding the date of entry of this Order by the Court.

IT IS SO ORDERED.
November 21
Dated: ____________, 2017

/s/ RAY KENT
_________________________________
United States Magistrate Judge
HON. PAUL L. MALONEY

United States District Judge

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EXHIBIT A

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SUSAN BUCK, ANITA BECKLEY,
RUBY ROBINSON, RITCHIE SWAGERTY,
and DANIEL VANDERKODDE,
on behalf of themselves and
all others similarly situated,
Plaintiffs,

Case No. 1:17-cv-203

v.

HON. PAUL L. MALONEY

MARY JANE M. ELLIOTT, P.C.,
BERNDT & ASSOCIATES, P.C.,
MIDLAND FUNDING LLC,
MIDLAND CREDIT MANAGEMENT, INC.,
ENCORE CAPITAL GROUP, INC., and
LVNV FUNDING LLC,
Defendants.
_________________________________________/
AGREEMENT TO ABIDE BY PROTECTIVE ORDER
I have read the Agreed Protective Order issued on _______________________, 2017, in the abovecaptioned case and agree to abide by its terms. Additionally, I further agree to consent to the jurisdiction of the
United States District Court for the Western District of Michigan Southern Division, for the purposes of
enforcement of the Protective Order.
Name (signature):

______________________________________________________

Name (print):

______________________________________________________

Address:

______________________________________________________

City, State, Zip Code:

______________________________________________________

Office Telephone:

______________________________________________________

Home Telephone:

______________________________________________________

Date signed:

______________________________________________________

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